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April 30, 2015

Senators Introduce Bipartisan Bill to Protect Navigable Waters in the United States

Bipartisan bill will direct EPA and Army Corps of Engineers to issue a revised WOTUS rule that protects traditional navigable water from water pollution, while also protecting farmers, ranchers and private landowners.

WASHINGTON, DC – Today, U.S. Senators John Barrasso (R-WY), Joe Donnelly (D-IN), Jim Inhofe (R-OK), Heidi Heitkamp (D-ND), Pat Roberts (R-KS) and Joe Manchin (D-WV), led a bipartisan group of senators in introducing the Federal Water Quality Protection Act (S. 1140).

The bipartisan legislation will ensure the protection of traditional navigable waters of the United States. It also protects farmers, ranchers and private landowners by directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to issue a revised “Waters of the United States” (WOTUS) rule that does not include things such as isolated ponds, ditches, agriculture water, storm water, groundwater, floodwater, municipal water supply systems, wastewater management systems, and streams without enough flow to carry pollutants to navigable waters.

“After working together for months, we’ve introduced a strong bipartisan bill that will protect America’s waterways - and America’s farmers, ranchers and landowners. Our legislation gives the EPA the direction it needs to write a reasonable rule that will truly protect our ‘navigable’ waterways,” said Barrasso. “By striking the right balance, we’ll keep our waterways safe and pristine and allow them to be used as natural resources. Our next step is to work together to ensure this bill moves quickly through Congress. It’s time for Washington to finally focus on preserving our rivers and lakes and delivering certainty to American citizens.” 

 “No one wants cleaner water or better land conditions than the families who live on American farms,” said Donnelly. “That is why it is incredibly important that the EPA rewrite the Waters of the United States rule with input from the people who live and work on the land and alongside these waters every day. I am proud to work on this bipartisan legislation because Democrats and Republicans can agree that the EPA needs to consult with states, small businesses, and farmers on something so critical as defining ‘Waters of the U.S.’ in a common sense way—something they failed to do the first time.”

“A few years ago, Congress rejected a bill that would have removed the term 'navigable water’ from the Clean Water Act. Last April, EPA and the Corps of Engineers proposed an even greater expansion of federal authority,” said EPW Committee Chairman Inhofe.  “I am proud of the bipartisan work that went into the Federal Water Quality Protection Act, which will refocus EPA and the Corps of Engineers on the job Congress gave them – protecting navigable water from pollution.  I look forward to moving this legislation through the Environment and Public Works Committee and to the Senate floor.” 

“There isn’t a regulation that has caused more concern for North Dakota farmers and ranchers than the Waters of the U.S. rule. We need to change that, which is why our bipartisan bill would give farmers and ranchers the certainty they need to do their jobs and determine how to use their own land,” said Heitkamp. “North Dakota is in the middle of an historic wet cycle, impacting farmers across our state with flooding and pooling water. We have to make sure that EPA takes these unique conditions into account and proposes a rule to regulate water that actually considers what is happening on farmers’ land. Our bipartisan bill would address these concerns and help provide clarity to producers in North Dakota and across the country without confusing federal regulations standing in their way.”

“I’m proud to lead agriculture’s charge in pushing back against EPA’s egregious federal overreach. Complying with the ‘Waters of the U.S.’ rule is consistently the number one concern I hear from farmers and ranchers across the country,” said Agriculture Committee Chairman Roberts. “The last thing rural America needs to worry about is more burdensome and costly federal oversight down on the farm. Our farmers and ranchers’ job is to take care of the land and natural resources. The federal government doesn’t have to tell them to do that.”

“With the prospect of tens of thousands of jobs on the line, the EPA cannot overreach its authority, yet again, by expanding the definition of water sources it can regulate,” said Manchin. “This bipartisan legislation lays out specific guidelines on what the EPA is allowed to oversee. The bottom line is that no federal agency should go around Congress to control what has not been legislated, especially when its actions will harm economic growth. Our top priority must be creating and protecting American jobs. That’s my commitment to the Mountain State and this country, and I will continue to fight for our families and West Virginia jobs every day.”   

“The proposed WOTUS rule is an attack on the people of Nebraska. Through its unprecedented proposal, the federal government is seeking to extend control over our state’s water,” said Fischer. “This will have far-reaching consequences and hurt growth, jobs, Nebraska families, and our economy. Nebraskans are good stewards of our natural resources and protect our water at the state and local level. I am proud to join my colleagues as an original co-sponsor of the Federal Water Quality Protection Act. This legislation will stop the overreach of the Obama administration and prevent a federal takeover of our water resources.”‎

"The administration’s proposed Waters of the U.S. rule is unnecessary and yet another example of unelected bureaucrats overstepping their boundaries when it comes to rulemaking,” said Rounds. “I agree with South Dakota farmers and ranchers, who continue to tell me this rule would bog down productivity by imposing massive new regulatory hurdles. In South Dakota, our producers are already good stewards of their land – they have to be because their livelihoods depend on it. I am pleased to be an original cosponsor of the Federal Water Quality Protection Act to protect South Dakota producers and put a stop to this unnecessary, burdensome and intrusive regulation.”

“With Alaska already home to more waters under the jurisdiction of the Clean Water Act than any other state in the country, the EPA’s attempt to expand the definition of what constitutes the Waters of the United States impacts no state more than my own,” said Sullivan. “After multiple field hearings I held as Chairman of the Subcommittee on Fisheries, Water and Wildlife, it is clear that Alaskans from vastly different industries and ideologies are clearly opposed to the scope of this rule and the process through which it was crafted. The legislation introduced today will bring much needed transparency and a fully informed stakeholder-driven process back to this rulemaking.”

In addition to Barrasso, Donnelly, Inhofe, Heitkamp, Roberts, and Manchin, the Federal Water Quality Protection Act is co-sponsored by Senate Majority Leader Mitch McConnell (R-KY) and Senators Roy Blunt (R-MO), Shelley Moore Capito (R-WV), Deb Fischer (R-NE), Mike Rounds (R-SD) and Dan Sullivan (R-AK).


EPA and the Corps of Engineers have proposed to expand the scope of federal authority over land and water to encompass all water in a flood plain, manmade water management systems, and water that infiltrates into the ground or moves overland, and any other water that they decide has a “significant nexus” to downstream water based on use by animals, insects and birds and water storage considerations, shifting the focus of the Clean Water Act from water quality protection and navigable waters to habitat and water supply.

To address these concerns and to ensure protection of water for communities across the country, the Federal Water Quality Protection Act directs the agencies to issue a revised proposal that adheres to the following principles- 

ü  The Federal Water Pollution Control Act is an Act to protect traditional navigable waters from water pollution.

ü  Waters of the U.S. under that Act should include

  • Traditional navigable waters and interstate waters.
  • Streams identified on maps at the scale used by EPA to identify potential sources of drinking water.
  • Streams with enough flow to carry pollutants to a navigable water, based on a quantifiable and statistically valid measure of flow for that geographic area, and
  • Wetlands situated next to a water of the United States that protect water quality by preventing the movement of pollutants to navigable water.
  •  Areas unlawfully filled without a required permit.

ü  Waters of the U.S. should not include

  • Water that is located below the surface of the land, including soil water and groundwater.
  • Water that is not located within a body of water (e.g., river, stream, lake, pond, wetland), including channels that have no bed, bank or ordinary high water mark or surface hydrologic connection to traditional navigable waters.
  • Isolated ponds.
  • Stormwater and floodwater management systems.
  • Wastewater management systems.
  • Municipal and industrial water supply management systems.
  • Agricultural water management systems.
  • Streams that do not have enough flow to carry pollutants to navigable waters.
  • Prior converted cropland.
  •  Areas lawfully filled pursuant to a permit or areas exempt from permitting.

In identifying waters of the U.S., the agencies are directed that the following do not provide a basis for asserting federal control- 

ü  The use of a body of water by an organism, including a migratory bird.

ü  The supply of water to a groundwater aquifer and the storage of water in an isolated waterbody.

ü  The water cycle, including the supply of water through evaporation, transpiration, condensation, precipitation, overland flow, and movement of water in an aquifer.

To ensure that Corps and EPA carry out the important analyses and consultations that are designed to improve regulation, a new regulatory proposal must be developed employing the following- 

ü  Federalism consultation under Executive Order 13132.

ü  Economic analyses under the Regulatory Flexibility Act.

ü  Small business and small governmental entity review under the Small Business Regulatory Enforcement Fairness Act.

ü  Review of the unfunded mandates under the Unfunded Mandates Reform Act.

ü  Compliance with Executive Orders 12866 and 13563, on improving regulation.